Tax Controversy

Related Services

Alston & Bird boasts a national tax controversy practice that represents taxpayers on U.S. and international tax issues during all phases of a tax dispute, including (i) audits, (ii) administrative appeals, (iii) trial and appellate litigation at all levels of the federal court system and (iv) mediation of both docketed and non-docketed cases. Tax litigation is a highly technical and specialized area of legal practice. Unlike many firms, we do not rely on general litigators; instead, we have developed a team of true tax litigators who have extensive substantive expertise in income, estate, gift and employment taxes. Our controversy specialists combine knowledge of substantive tax law and the complex procedural options to effectively defend client positions through written and oral advocacy.

Experience

At the audit phase of a tax dispute, our involvement with the IRS can range from minimal to extensive, depending on the circumstances. We have broad experience in “behind-the-scenes” assistance in strategizing and responding to audit information requests in a way that best reflects the merits of the taxpayer’s return position and that preserves the attorney-client, work product and other applicable privileges. We also have extensive experience with special procedures, such as summons enforcement proceedings, requests for technical advice, closing agreements, fast track and accelerated issue resolution. As needed, we interact with the IRS revenue agents and field specialists, including ISP specialists, engineers, employee benefits specialists and international specialists.

At the administrative appeals phase of a tax dispute, we are actively involved in the oral and written advocacy of the client’s position, and we typically lead the negotiations with the IRS Appeals Officer and Technical Guidance Coordinator to determine whether the dispute can be favorably resolved without litigation. We have appeared at most of the IRS Appeals Offices throughout the nation.

If the dispute cannot be resolved administratively, we strategize with the client on the best choice of forum for litigating the tax dispute, taking into account the payment of tax, trial location, judges, government attorneys, timing and nature of the trial, settlement authority, publicity of proceedings, evidentiary rules, procedural rules, appellate jurisdiction and judicial precedent. We have litigated cases in the U.S. Tax Court, the U.S. Court of Federal Claims, district courts and appellate courts around the country. We also have successfully settled or mediated cases after they were docketed for litigation.

We have significant expertise with cases of first impression, cases involving industry-wide issues and cases involving complex structured transactions. For example, our cases have involved lease-leaseback transactions, sale-leaseback transactions, REIT transactions, contingent liability transactions, basis-shifting transactions, cellular telephone commissions, acquisition-related intangibles, research and development tax credits, credit card fee income and loan origination costs. We also have extensive experience on issues involving the deductibility or capitalization of business expenditures.

Our tax litigators played a key role on the Alston & Bird team that assisted the Bankruptcy Examiner in his investigation of Enron. Our tax controversy specialists analyzed transactions consummated by Enron’s tax department in which Enron used large internal asset reorganizations to record deferred tax assets and increase financial accounting income. This engagement has given us unparalleled expertise to analyze transactions and provide clients with an assessment of their litigation risk.

Today, our clients are operating in an environment with more burdensome requirements and greater demands for transparency by the financial statement auditors and the IRS. This environment is largely the result of (i) the tax shelter initiatives by the IRS and other tax authorities after the Enron bankruptcy in 2001, (ii) the enactment of the Sarbanes-Oxley Act in 2002 and (iii) the issuance of FASB’s Interpretation No. 48, Accounting for Uncertainty in Income Taxes, (FIN-48) in 2006. Our litigators have both tax and accounting expertise and, as a result, are routinely involved with FIN-48 litigation risk assessments and other compliance issues.

Accolades

Chambers USA: America’s Leading Lawyers for Business ranked Alston & Bird’s tax controversy practice among the leading practices in the United States.

The Legal 500-United States: The Legal 500 recognized Alston & Bird as a leading firm in tax controversies.

Best Lawyers: Our tax litigators have been listed in The Best Lawyers in America, American College of Tax Counsel and Georgia Super Lawyers magazine.

Bringing Value to Our Clients

A successful client relationship requires expertise, professionalism, responsiveness and a dedication to the client and their tax disputes. In strategizing with our clients on the best approach for a successful resolution of their disputes, we recognize that success in any given tax dispute cannot be measured by a single standard. Success varies by client and by dispute. As a result, we always consider our client’s goals, the accounting impact of the tax issues, the merits of the substantive issues, the hazards of litigation, the reoccurrence of the issues in the industry, the impact on future years and the ability to resolve a dispute without litigation. Even if settlement initially appears likely, we never ignore the possibility of litigation and, therefore, we keep a litigation strategy in mind during the entirety of the representation. There are strategic decisions to be made throughout the life of the tax dispute that can impact the outcome of the disputed issues and, therefore, our client’s overall success. Clients hire us because of our dedication to this success.

We represented large financial institutions around the country on issues of first impression involving the tax consequences of lease-leaseback transactions, sale-leaseback transactions and real estate investment trust (REIT) transactions. We obtained favorable settlements in the audit and appeals stages of the disputes.

Fifth Third Bancorp & Subsidiaries v. United States, Case No. 1:05CV350 (S.D. Ohio 2005) (pending). This case involved a high-profile, industry-wide issue regarding the tax treatment of cross border lease-leaseback transactions. A jury trial was held in 2008 and the case was settled in 2009.

Barnett Banks of Florida, Inc. v. Commissioner, 106 T.C. 103 (1996). We were successful in a case of first impression in which the court held that the bank could defer the recognition of credit card fee income.

The U.S. Department of the Treasury recently released a revised U.S. Model Income Tax Convention (the “2016 model”), the U.S. starting point for bilateral treaty negotiation, last updated a decade ago. In May 2015, the Treasury circulated several proposed changes in draft form. Those proposals generally survive in the 2016 model, although the Treasury has made a number of modifications in response to comments on the draft provisions.

“Estoppel as a Basis for Recovery for Misrepresentation,” in ERISA Litigation, 3rd, 4th and 5th eds., and 2009, 2010, 2012, 2013 and 2015 Cumulative Chapter Supplements, The Bureau of National Affairs, 2008, 2011, 2014.

On April 16, 2012, the U.S. Court of Appeals for the Third Circuit allowed three participants to pursue their excessive 401(k) fees lawsuit directly against John Hancock Life Insurance Co. and its affiliates (collectively, John Hancock).